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HCAL351/2018
[2018] HKCFI 1847
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 351 of 2018
BETWEEN
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Adhikari Pabittra Chandra |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Bangladesh. He is now aged 30 (DOB: 5 May 1988).
2. The Applicant claimed he would be harmed or killed by members of the Awami League (“AL”) in Bangladesh.
3. The Applicant said he became a member of the Bangladesh Nationalist party (“BNP”) in 2008. He had participated in the party’s meetings and rallies.
4. On 8 November 2012, the Applicant attended a BNP meeting. Some AL members came to cause disruption. One was called Jahangir, who was AL’s general secretary in the Applicant’s village. Some AL people were armed. They vandalised the properties in the BNP office and badly injured a BNP member. The Applicant was injured too. An AL member was also seriously hurt.
5. The Applicant did not report the matter to the police. He feared the police might be biased due to AL’s influence.
6. The Applicant was afraid the AL people would seek revenge. He left home to live elsewhere with his relatives.
7. The AL people did go to the Applicant’s home to look for him that night. They refused to settle and constantly harassed the BNP members.
8. The Applicant and his family had not complained to the police because AL was in power. The Applicant thought the Bangladesh police could not protect him and internal relocation was not possible.
9. On 21 December 2012, the Applicant left Bangladesh for China. He entered Hong Kong illegally from China by boat on 3 February 2013. He did not seek non-refoulement protection immediately. His explanation was that he was not familiar with Hong Kong.
10. The Applicant was arrested three days later on 5 February 2013. He lodged a torture claim [1] on 9 February 2013. His torture claim was refused by the Director on 21 August 2013. There was no appeal.
11. On 22 January 2014, the Applicant raised a non-refoulement claim.
12. In the ensuing two-tier screening process (“the Unified Screening Mechanism”), the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to the remaining applicable grounds: (i) risk of persecution,[2] (ii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iii) risk of violation of the right to life (BOR2 risk)[4].
13. On 6 March 2018, the Applicant applied for leave for judicial review.
Chronology of events
14. Things happened in this order: –
| 2012-12-21 |
The Applicant left Bangladesh for China by air. |
| 2013-2-3 |
The Applicant entered Hong Kong illegally from China. |
| 2013-2-5 |
The Applicant was arrested by the police for illegal remaining. |
| 2013-2-9 |
The Applicant raised a torture claim. |
| 2013-6-28 |
The Director interviewed the Applicant. |
| 2013-7-29 |
The Director interviewed the Applicant again. |
| 2013-8-21 |
The Director refused the Applicant’s torture claim. [There was no appeal.] |
| 2014-1-22 |
The Applicant raised a non-refoulement claim. |
| 2017-7-25 |
The Director interviewed the Applicant for the third time. |
| 2017-7-27 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR2 risk). [“the Director's decision”] |
| 2017-12-1 |
The Applicant appeared before the Board for appeal. |
| 2018-2-9 |
The Adjudicator refused the Applicant’s claim with respect to these three applicable grounds: (i) persecution risk, (ii) CIDTP risk (BOR3 risk) and (iii) life risk (BOR2 risk). [“the Board’s decision”] |
| 2018-3-6 |
The Applicant applied for leave for judicial review. |
Respondents
15. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis.
16. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
17. An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]
18. In the present case, the Director's decision was more than three months old by the time the Applicant filed his current application on 6 March 2018. However, the Applicant should not seek judicial review against the Director's decision before the Board rendered its appeal decision on 9 February 2018. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision albeit late on 6 March 2018; the application against the Board's decision was made in time.
Director of Immigration (the Director)
19. In the Director’s decision dated 27 July 2017, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s own account of events the officer found the Applicant had not been inflicted with ill-treatment to a minimum level of severity. The Applicant's alleged enemies were just a group of AL people localized in the village. The officer also did not accept AL would be all out to go after the Applicant in Bangladesh. There was no evidence to show the alleged enemies had real intention to harm or kill the Applicant.
20. The officer was aware there were reports of police corruption. However, there was also objective country-of-origin information (“COI”) showing the Bangladesh government had taken practical steps to monitor the police and to improve their effectiveness. The officer found the Applicant simply failed to seek assistance from the Bangladesh police or authorities. There was no evidence that the Bangladesh police or authorities were unable or unwilling to discharge their duties, or would tolerate any unlawful and abusive behaviour as a systematic practice. There was no indication that AL (in general) and the Bangladesh government were involved. There was also no evidence the state was indifferent to or encouraging the Applicant's alleged enemies. The officer was satisfied reasonable state protection was available to the Applicant. Internal relocation was also viable.
21. The officer found the Applicant failed to prove any real persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
TCAB/NCPO (the Board)
22. The Adjudicator found there were inconsistent and implausible features in the Applicant’s allegations which lacked proof. He did not accept that the Applicant’s life had been threatened or the AL had targeted him for persecution. He also did not accept the Applicant's claim that the Bangladesh police had connived with AL and therefore would not protect him.
23. The Adjudicator considered that even if the Applicant faced any risk (which the Adjudicator did not accept), the latter could relocate himself to other parts of Bangladesh. The Adjudicator did not accept AL as a political party would spend resources and efforts to track down the Applicant for a fight that took place in a certain locality several years ago.
24. The Adjudicator did not accept the Applicant faced any real persecution risk, CIDTP risk (BOR3 risk) or life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.
Grounds of judicial review
25. In his affirmation, the Applicant complained the Director and the Adjudicator made errors of law; misdirected in law; failed to conduct sufficient inquiries of relevant COI; failed to make independent assessment of relevant COI; cherry-picked information; failed to properly consider the concept of extended state acquiescence; rendered unreasonable decisions. He complained the Director and the Adjudicator wrongly classified his predicament as a private dispute and not on account of his political view as a BNP member.
Court hearing
26. In Form 86, the Applicant requested a hearing. The hearing took place on 11 June 2018. The Applicant was in person. A Bengali interpreter provided interpretation service in court.
27. The Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application of judicial review. The Applicant confirmed all the grounds of his application were in the documents. He had nothing to add.
28. The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6]
31. The Applicant complained the Director and the Adjudicator wrongly classified his predicament as a private dispute and not on account of his political view as a BNP member.
32. Even on the Applicant's own account of events, both the Director and the Adjudicator found the alleged enemies were merely a local AL group troubling the Applicant. There was no evidence that the complained situation was part of a class conflict or persecution.
33. The Applicant complained the Director and the Adjudicator failed to properly consider the concept of extended state acquiescence.
34. The immigration officer found the Applicant failed to seek assistance from the Bangladesh police or authorities. There was no evidence the police or authorities were unable or unwilling to discharge their duties or would tolerate any unlawful and abusive behaviour as a systematic practice. There was no indication the Bangladesh state was involved in or indifferent to or encouraging the Applicant's alleged enemies. The officer was satisfied reasonable state protection was available to the Applicant.[7]
35. The Adjudicator did not accept the Applicant’s claim that the Bangladesh police had connived with AL and therefore would not protect him.[8]
36. Both the Director and the Adjudicator had proper basis for their findings. There was really no state acquiescence of any kind.
37. The Applicant's other complaints were vague. I have reviewed the Director's decision and the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in any of the Applicant’s complaints against the Director or the Adjudicator. Each of them had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The reports of the Director and the Adjudicator respectively showed they were acquainted with the facts and applied the law correctly. They considered the Applicant's case carefully. They were entitled to render those findings, conclusions and decisions which were all reasonable. The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
38. The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 13th day of August 2018
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(Alan Ngan)
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant on 13/8/2018
Adhikari Pabittra Chandra
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 13/8/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8061/17/8/99/B924
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1528/17 (formerly RBCZ 2001983/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] Order 53, rule 4 of the Rules of the High Court.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] The Director’s decision dated 27 July 2017, para 19.
[8] The Board’s decision dated 9 February 2018, para 30.
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